COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
MORRIS B. ARMSTRONG
OPINION BY
v. Record No. 1767-97-4 JUDGE DONALD W. LEMONS
FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Mary E. Maguire (J. Amy Dillard, Deputy
Public Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Morris Armstrong appeals his conviction for possession of
cocaine alleging that the trial court erred in failing to
suppress evidence and that the evidence was insufficient to
sustain his conviction. Finding no error, we affirm his
conviction.
On January 3, 1997 at approximately 9:15 p.m., Alexandria
Police Officer Diane Gittins was working in a concealed location
watching for drug violations, a practice known as "spotting."
Gittins had approximately 2,000 hours of past experience in
"spotting" and had seen crack cocaine on at least 500 prior
occasions. The area she had chosen was known for high incidence
of drug possession and distribution and was well illuminated by
streetlights. Using 20x80 binoculars located 25 to 50 feet above
street level and from a distance of less than 100 feet, Gittins
observed Armstrong walking down the street followed by two women.
Without obstruction and with the aid of visual enhancement,
Gittins saw Armstrong lift his right hand in front of his body
and open his palm, exposing a "small, unpackaged, off-white,
rock-like object" smaller than a pencil eraser which she believed
to be a rock of crack cocaine. Gittins testified that Armstrong
looked at the rock of crack cocaine for several seconds then
closed his hand and "brought it back down to his right side" and
proceeded to a vehicle with the two women.
Gittins then called for back-up officers to arrest
Armstrong. She watched him enter a brown station wagon and
observed the vehicle until it moved out of her view. She
testified that several minutes later she saw the brown station
wagon on the 200 block of North Payne Street. She called back-up
officers to the location and gave them the same description of
Armstrong.
Officer Chris Wimple testified that he responded to the
radio call from Officer Gittins, arrested Armstrong and searched
him incident to arrest. No contraband was recovered from his
person. A female officer searched the two women who were with
Armstrong, and no contraband was recovered from them. After all
of the parties were searched, Wimple looked inside the station
wagon and saw a small "off-white, irregularly shaped, rock-like
object" on the floorboard on the passenger side. He believed it
to be a rock of crack cocaine. A laboratory analysis later
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revealed it to be .15 grams of cocaine. Wimple testified that
there were no other small, white, rock-like objects recovered
from the vehicle.
Wimple transported Armstrong to the police station, where
Armstrong admitted that he was a drug user and was in the
neighborhood to buy crack cocaine. He said that the two women
had just purchased crack cocaine and he was intending to get a
piece of crack cocaine from them for his own use but the police
stopped him before he was able to do so.
Prior to trial Armstrong moved to suppress the cocaine. The
court denied his motion to suppress. At the conclusion of the
evidence at trial, Armstrong moved to strike the evidence as
being insufficient for conviction.
"In reviewing a trial court's denial of a motion to
suppress, '[t]he burden is upon [the defendant] to show that
th[e] ruling, when the evidence is considered most favorably to
the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). While we are bound to review de
novo the ultimate questions of reasonable suspicion and probable
cause, we "review findings of historical fact only for clear
error 1 and . . . give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers."
1
"In Virginia, questions of fact are binding on appeal
unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487
S.E.2d n.1 (citations omitted).
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Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote
added).
Armstrong argues that police did not have probable cause to
arrest him.
Probable cause is a flexible, common-sense
standard, merely requiring that the facts
available to the officer would warrant a man
of reasonable caution to believe that certain
items may be contraband or stolen property or
useful as evidence of a crime; it does not
demand any showing that such a belief be
correct or more likely true than false.
Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted). We
have stated that experienced police officers "may be able to
perceive and articulate meaning in given conduct which would be
wholly innocent to the untrained observer." Richards v.
Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268, 270-71 (1989).
"If an officer has reason to believe that a person is committing
a felony in his [or her] presence by possessing contraband or a
controlled substance, the officer has probable cause to arrest
the individual without a warrant." Buck v. Commonwealth, 20 Va.
App. 298, 304, 456 S.E.2d 535, 537 (1995).
Officer Gittins observed Armstrong in an area known for drug
trafficking and possession, holding up for observation an
"unpackaged, off-white, rock-like object." Presumably, the
object had value because Armstrong closed his fist to maintain
control over it and proceeded to a parked car with his two female
companions. Based upon her training and experience and the
totality of the circumstances, Officer Gittins believed it was
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crack cocaine. Surely, had the officer been standing immediately
adjacent to Armstrong and made these observations there would be
no question about probable cause for arrest. Here, she was aided
by enhanced vision to achieve the functional equivalent of
standing immediately adjacent to Armstrong. The trial judge
stated:
This is a very simple matter. Either you
believe or you do not believe that the
officer is an expert in the identification of
crack cocaine. The officer said that the
individual involved was within 100 feet. The
officer was using 20-power binoculars, which
puts that person within the parameters of 5
to less feet from the officer at the time
that the officer view[ed] the individual and
his hand. The officer has seen crack cocaine
hundreds if not thousands of times before.
What difference does it make if it happens to
be imitation crack cocaine. He is not
required or she is not required to be
absolutely right, but merely to have probable
cause to believe that a crime is being
committed.
Armstrong argues that Officer Gittins' observations may not
be bolstered by the fact that the activities took place in a
"high volume drug area." He cites Riley v. Commonwealth, 13 Va.
App. 494, 412 S.E.2d 724 (1992), in which we stated that an
officer may not use the "reputation of an area for proving 'guilt
by association.'" Id. at 498, 412 S.E.2d at 726. In Riley, the
officer "had no prior knowledge of Riley or his possible
involvement in any criminal activity." Id. at 497, 412 S.E.2d
726. The arresting officer testified that he had seen Riley "in
a high crime area late at night" and that "[w]hen Riley exited
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his vehicle and saw [the officer], Riley turned to face his own
vehicle, made a motion toward the front of his waistband, and
closed the door to his vehicle." Id. at 497, 412 S.E.2d at 726.
We reversed the defendant's conviction for possession of cocaine
holding that "[the officer] had no particularized knowledge of
[his] involvement in any criminal activity" and that his
"observations and suspicions were insufficient to justify an
investigatory stop." Id. at 499, 412 S.E.2d at 727.
In the case now before us, the question is not whether
Officer Gittins had reasonable, articulable suspicion to stop
Armstrong, but whether the officer had probable cause to arrest
him for possession of cocaine. The officer did not rely upon the
mere presence of Armstrong in a high drug area to create probable
cause. Officer Gittins observed Armstrong with what she believed
was a piece of crack cocaine in his hand. Therefore, Officer
Gittins had reason to believe that a felony was being committed
in her presence. "If an officer has reason to believe that a
person is committing a felony in his [or her] presence by
possessing contraband or a controlled substance, the officer has
probable cause to arrest the individual without a warrant."
Buck, 20 Va. App. at 304, 456 S.E.2d at 537.
Armstrong cites Goodwin v. Commonwealth, 11 Va. App. 363,
398 S.E.2d 690 (1990), in support of his argument that the
conduct observed by Officer Gittins, "without evidence of a
transaction or even a conversation with a suspected drug dealer,
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constitutes innocent behavior." In Goodwin, the defendant
entered a conditional guilty plea to possession of cocaine and
possession of a concealed weapon, arguing that the trial court
erred in denying his motion to suppress on the ground that the
evidence was the product of an illegal search. Two police
officers testified that they observed Goodwin in a "high crime
area," and stated that when Goodwin saw them, he "'jammed' his
hand into his coat pocket." Id. at 364-65, 398 S.E.2d at 691.
The officers "did not see any item or article in Goodwin's hand
or coat pocket." Id. at 365, 398 S.E.2d at 691. We reversed his
convictions, holding that upon these grounds, "the police lacked
adequate grounds to stop Goodwin, and . . . the stop was
illegal." Id. at 367, 398 S.E.2d at 692. Goodwin is
distinguished from the case before us in one very important
respect. Officer Gittins observed Armstrong with what she
believed was a piece of crack cocaine in his hand.
Armstrong also argues that Moss v. Commonwealth, 7 Va. App.
305, 373 S.E.2d 170 (1988), supports his argument that Officer
Gittins lacked probable cause to arrest Armstrong. In Moss, we
reversed the defendant's conviction for possession of cocaine,
holding that the police lacked probable cause or reasonable
suspicion to detain him. The officer observed Moss standing on
an intersection with "his arms extended in front of him . . .
making a twisting motion with something between his fingers."
Id. at 306, 373 S.E.2d at 171. The officer admitted that he
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"couldn't make out what was in" the defendant's hand. Id. at
308, 373 S.E.2d at 172. We held that because the officer's
observations did not create an adequate basis upon which to stop
Moss, "the stop was illegal and the cocaine seized as a result
thereof was improperly admitted into evidence." Id. at 308-09,
373 S.E.2d at 172. Moss is distinguished from the case before us
in one very important respect. Officer Gittins observed
Armstrong with what she believed was a piece of crack cocaine in
his hand.
Armstrong also cites DePriest v. Commonwealth, 4 Va. App.
577, 359 S.E.2d 540 (1987), to support his argument that a
finding of probable cause requires more than an officer's
observation of a suspicious act. In DePriest, an experienced
police officer observed a sequence of events which the
Commonwealth argued was typical of a common form of narcotics
transaction. However, the officer "did not observe suspected
narcotics change hands, nor did he observe the exchange of any
object which in his experience suggested narcotics." Id. at 585,
359 S.E.2d at 544. In affirming DePriest's convictions, we held
that although the officer's "observations and experience alone"
were insufficient to establish probable cause, they did amount to
reasonable, articulable suspicion and the subsequent arrest of
DePriest was not illegal. Id. at 584, 585-86, 259 S.E.2d at 543,
544. Unlike the facts in DePriest, however, here Officer Gittins
saw the object in question and, based upon her training and
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experience and upon the totality of the circumstances, she did
have probable cause to believe that the object was crack cocaine.
Armstrong maintains that the passage of five minutes between
the direction to arrest him and the actual arrest undermines the
probable cause determination. He argues that "the test of
constitutional validity is whether at the moment of arrest the
arresting officer had knowledge of sufficient facts and
circumstances to warrant a reasonable man in believing that an
offense has been committed." Bryson v. Commonwealth, 211 Va. 85,
86-87, 175 S.E.2d 248, 250 (1970). In Bryson, the Supreme Court
of Virginia held that a police officer who observed a person on
the street with a piece of paper under a rubber band on his
finger did not have probable cause to arrest him for operation of
a lottery under Code § 18.1-340 (repealed 1975), and reversed his
conviction.
Armstrong contends that after Officer Gittins first observed
him, he drove out of her sight and that when she next saw him,
the officer did not see any objects in his hand, nor did she see
him talk with anyone or buy anything. Based upon her testimony,
Armstrong argues "[a]t the moment just prior to arrest, when she
called Officer Wimple to arrest Mr. Armstrong, Officer Gittins
had no current knowledge of facts or circumstances to warrant any
reasonable person to believe that Mr. Armstrong was committing a
felony."
Armstrong's argument has no legal foundation. He seeks to
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impose a severe time limitation on the duration of probable cause
by arguing that probable cause to arrest exists only at the very
moment that the officer observes the occurrence of the criminal
activity, and disappears immediately unless the arrest is
effectuated at exactly that moment.
At the moment that Officer Gittins called for Armstrong's
arrest, her observations had created probable cause for Officer
Wimple to arrest him. "If an officer has reason to believe that
a person is committing a felony in his [or her] presence by
possessing contraband or a controlled substance, the officer has
probable cause to arrest the individual without a warrant."
Buck, 20 Va. App. at 304, 456 S.E.2d at 537. The passage of five
minutes before the arrest was accomplished is of no legal
significance.
The search of Armstrong's vehicle constituted a search
incident to a lawful arrest. "The only prerequisites to a search
of an automobile incident to arrest are that the search is
contemporaneous with the arrest and the arrestee's recent
occupancy of the vehicle." Glasco v. Commonwealth, 26 Va. App.
763, 773, 497 S.E.2d 150, 154 (1998). Because Armstrong was in
the vehicle when Officer Wimple arrested him and the search of
the vehicle was immediate, the search of the vehicle was properly
conducted incident to his arrest. In addition, "if a car is
readily mobile and probable cause exists to believe it contains
contraband, the Fourth Amendment . . . permits police to search
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the vehicle without more." Pennsylvania v. Labron & Kilgore, 518
U.S. 938, 940 (1996).
Even if probable cause did not exist, Armstrong concedes
that "the facts in the case at bar provide grounds for reasonable
suspicion, at best" for Wimple to conduct a "Terry" stop.
Pursuant to a valid stop, the officer may ask the occupants of
the vehicle to exit the vehicle. See Hatcher v. Commonwealth, 14
Va. App. 487, 419 S.E.2d 256 (1992). After Armstrong exited the
car, the officer saw the crack cocaine in plain view on the
passenger floorboard. Evidence may be seized when the officer is
lawfully in a position to view the item and the illegal character
of the object is immediately apparent to the officer. See Conway
v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310, 314 (1991)
(en banc). For any one of the reasons above the motion to
suppress was properly denied.
Armstrong also challenges on appeal the sufficiency of the
evidence. When the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). On appeal, the
decision of a trial court sitting without a jury is afforded the
same weight as a jury's verdict and will not be disturbed unless
plainly wrong or without evidence to support it. See King v.
Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).
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"The Commonwealth may prove possession of a controlled
substance by showing either actual or constructive possession."
Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904
(1998).
To establish "possession" in the legal sense,
it is not sufficient to simply show actual or
constructive possession of the drug by the
defendant. The Commonwealth must also
establish that the defendant intentionally
and consciously possessed it with knowledge
of its nature and character.
Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758-59
(1975) (citations omitted).
"Knowledge of the presence and character of the controlled
substance may be shown by evidence of the acts, statements or
conduct of the accused." Eckhart v. Commonwealth, 222 Va. 447,
450, 281 S.E.2d 853, 855 (1981).
To support a conviction based on constructive
possession, the Commonwealth must point to
evidence of acts, statements, or conduct of
the accused or other facts or circumstances
which tend to show that the defendant was
aware of both the presence and character of
the substance and that it was subject to his
dominion and control.
Glasco, 26 Va. App. at 774, 497 S.E.2d at 155 (citations
omitted).
The trial court found that Armstrong had actual possession
of the crack cocaine in his hand and constructive possession five
minutes later when the cocaine was found on the floorboard of
Armstrong's car near where his right foot had been located.
Armstrong admitted that he was a crack cocaine user, and it can
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be inferred that he is familiar with its appearance.
Considering the totality of the evidence and any reasonable
hypothesis of innocence, the trial judge stated,
Somehow or another between the five minute
lapse, you want me to speculate that one of
those ladies got themselves a piece of crack
cocaine, put it on the floor, and that the
piece that was in [the defendant's] hands has
since been smoked, drunk, or otherwise
disposed of, and that the piece that we find
on the floor is one of these lady's. And you
want me to believe that because [the
defendant], in trying to talk his way out of
getting arrested by the police, says it is
not me, it is these two girls that are with
me. Now you know, when we use common sense
and you try to come to a reasonable
conclusion based on the facts that are put in
front of you and somebody tells you they saw
a guy with a piece of crack cocaine in his
hand and five minutes later they stop the car
and there is crack lying on the floor and
there isn't any crack on anybody else – the
car is searched and the man is searched – and
I am supposed to dream up an extra piece of
crack cocaine to find a reasonable doubt?
No, thank you. I find [Armstrong] guilty as
charged.
We do as well. The conviction is affirmed.
Affirmed.
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